The Oxford Companion to International Criminal Justice

1093 Pages·2009·11.772 MB·English

by  Antonio Cassese

THE OXFORD COMPANION TO
INTERNATIONAL CRIMINAL JUSTICE
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THE OX FOR D
COMPANION TO
INTER NATIONAL
CRIMINAL
JUSTICE
Editor-in-chief
Antonio Cassese
1
3
Great Clarendon Street, Oxford ox2 6dp
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Data available
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Th e Oxford companion to international criminal justice / general editor, Antonio Cassese.
p. cm.
1. International off enses. 2. International criminal courts. I. Cassese, Antonio.
K5301.O94 2008
345'.0235—dc22 2008052730
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
Printed in Great Britain
on acid-free paper by
MPG Books Ltd, Bodmin, Cornwall
ISBN 978–0–19–923831–6 (Hbk.)
ISBN 978–0–19–923832–3 (Pbk.)
10 9 8 7 6 5 4 3 2 1
Editors
Editor-in-chief
Antonio Cassese
Professor of International Law, University of Florence; former Judge and
President, ICTY
Editorial Committee
Guido Acquaviva
Legal Offi cer, ICTY
Dapo Akande
University Lecturer in Public International Law and Yamani Fellow, St. Peter’s
College, Oxford
Laurel Baig
Legal Offi cer, ICTY
Robert Cryer
Professor of International and Criminal Law, Birmingham Law School
Urmila Dé
Editorial Assistant, Journal of International Criminal Justice
Paola Gaeta
Professor of International Law and International Criminal Law, University of
Florence and University of Geneva
Julia Geneuss
Research Fellow in International Criminal Law, Humboldt University, Berlin
Katrina Gustafson
Legal Offi cer, ICTY
Florian Jessberger
Lichtenberg Professor of International and Comparative Criminal Law,
Humboldt University, Berlin
Jia Bing Bing
Professor of International Law, Tsinghua University, Beijing
Sandra Krähenmann
Research and teaching assistant, Geneva Academy of International
Humanitarian Law and Human Rights, Geneva
vi Editors
Jens Ohlin
Assistant Professor of Law, Cornell University Law School
Giulia Pinzauti
Ph.D. Candidate, European University Institute, Florence
Göran Sluiter
Professor of International Law of Criminal Procedure, University of Amsterdam
Vanessa Th almann
Research and teaching assistant in Criminal Law, University of Geneva
Salvatore Zappalà
Professor of International Law, University of Catania
Foreword
When, some six years ago, I was fi rst asked by my friend John Louth, on behalf of
Oxford University Press (a publishing house to which I am greatly attached) to edit an
Oxford Companion, I refused: I was aware that the enterprise was titanic, my strengths
limited, and in addition I lacked any support of academic institutions with the attend-
ant advantages of research assistance, secretarial help and fi nancial means. But John,
in addition to being very competent, is a powerful persuader. Th us, when four years
ago he made a fresh attempt, I yielded, although my working conditions had not amel-
iorated at all. Clearly, I was utterly reckless in doing so, as I may realize now, aft er so
many years of hard work. However, I was induced to give in primarily because I very
much liked the idea of compiling for the fi rst time a sort of encyclopaedia covering an
area that, while in full bloom, had not yet been the object of a general exposition of all
its ramifi cations and intricacies. Also, I had meanwhile established a good network
of criminal lawyers and international criminal lawyers through editing the Journal
of International Criminal Justice and could now count on the goodwill of a number
of young scholars and practitioners. I thus set up an Editorial Committee, which has
proved of great help. Th e members of this Committee have fully assisted me in editing
the book. Th eir main task has been to discuss, and agree with me, the general criteria
for draft ing entries as well as the list of both the entries and the persons to invite. In
addition, each of them, besides contributing entries, has coordinated and supervised
many of those written by other persons. We were also able to hold a meeting of all
members of the Committee, together with John Louth, in Florence in February 2006.
Th e fi nal result of this collective eff ort is, I hope, good. To be sure, readers emunctae
naris, of acute discernment, will no doubt spot lacunae, omissions, and other mistakes.
I myself am already aware of some gaps: for instance, we are publishing entries on only
a few—those which appeared to me more interesting—of the hundreds of German
post-World War II cases reproduced in the splendid 22 volume collection, Justiz
und NS-Verbrechen-Sammlung Deutscher Strafurteile wegen Nationalsozialistischer
Tötungsverbrechen 1945–1966 (1968–75). Probably a further look at those judgments
would show that other cases need to be mentioned in the Companion. Furthermore,
because of time constraints, we have been unable to take into account more recent edi-
tions of some books quoted in the Companion (for instance, of the second edition of
Gerhard Werle’s Völkerstrafrecht or my own International Criminal Law).
Th is, however, was intended to be a fi rst attempt, which will hopefully be improved
upon, updated and enriched as time goes by.
***
Let me now explain a few main features of the book. It is designed to be used not only
by international and criminal lawyers (both practitioners and academics) but also
by anybody interested in the current developments of international justice. Hence
we have tried to use a language also accessible to those who are not familiar with
criminal law.
viii Foreword
Th e book is divided into three Sections.
Section I consists of 21 brief essays on the main problems of international criminal
law. Th ese essays are not arranged in alphabetical order, but in a systematic and logical
sequence. Th ey intend to put the whole cluster of problems relating to international
criminal justice into a general perspective, and also to point to both the major areas of
progress and the pitfalls of this body of law.
Section 2 consists of 320 entries, arranged in alphabetical order, covering: 1) the
major legal issues arising in international criminal law as well as in national and inter-
national trials (categories of crime, mens rea, modes of responsibility, defences, and so
on); 2) international institutions that have dealt, or are dealing, with criminal cases at
the international level; 3) mechanisms intended to constitute an alternative to crimi-
nal justice (truth and reconciliation commissions, gacaca courts, and others); 4) brief
biographies of a few outstanding personalities involved in Nuremberg, Tokyo, the
ICTY and the ICTR (on obvious grounds we have preferred only to mention those who
have passed away).
Section 3, which is also arranged in alphabetical order and comprises 420 entries,
deals with a selection of all the major cases (national and international) concerning
war crimes, crimes against humanity, aggression, genocide, and torture. In short,
these cases have been selected on these criteria: 1) primary consideration was given
to serious breaches of ‘core crimes’ at the level of courts international as well as
national, although this had to be extended in order to cover some borderline cases;
2) in most instances, entries have been written only where judgments have already
been delivered, although in a few cases entries deal with ongoing proceedings where
the specifi c issue at hand remains unresolved. Th e cut-off date (especially with regard
to the ICTY, the ICTR, the ICC and the Special Court for Sierra Leone) was taken to
be April 2008.
I think this is the fi rst time many of these judicial proceedings concerning interna-
tional crimes have been surveyed and discussed, if only briefl y. Th is, in itself, should be
a major merit of the book, the more so because many of these cases are only available
in languages other than English.
I should add that some contributors to the Companion are practitioners working
for international courts and tribunals (for example, the ICTY, the ICTR, or the ICC).
Th ey have brought to this volume their fi rst-hand experience of international crimi-
nal proceedings and have confi rmed my view that a mix of scholars and practitioners
would prove extremely helpful to the project. All of them have of course written their
essays or entries in their private capacity; therefore the opinions they expressed do not
necessarily refl ect the views of the United Nations or of the institution by which they
are employed.
I earnestly hope that the Companion will prove helpful to those who, as scholars,
students or practitioners, deal with or are interested in international criminal justice.
With a view to improving the work in future, I would welcome any criticism, comment
or suggestion.
antonio cassese
Contents
List of Contributors xix
Glossary and List of Abbreviations xxv
Tables of Cases xxxiii
Table of National Legislation and other National Texts lix
Table of Treaties and other International Instruments lxv
Part A Major Problems of International
Criminal Justice
I. How to Face International Crimes
Collective Violence and International Crimes 5
A. Ceretti
State Responsibility and Criminal Liability of Individuals 16
A. Bianchi
Alternatives to International Criminal Justice 25
J. E. Alvarez
II. Fundamentals of International Criminal Law
Sources of International Criminal Law 41
D. Akande
General Principles of International Criminal Law 54
G. Werle
International Criminalization of Prohibited Conduct 63
P. Gaeta
Gender-related Violence and International Criminal Law and Justice 75
C. Chinkin
Modes of International Criminal Liability 82
B. Swart